Joseph Doney v. State of Kerala & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 5[TH] DAY OF APRIL 2024 / 16TH CHAITHRA, 1946 ## WP(C) NO. 28435 OF 2011 ## PETITIONER: JOSEPH DONEY S/O. LATE JOSEPH, PLATHOTTATHIL HOUSE, ARAKUZHA, MUVATTUPUZHA-680 672 BY ADVS. SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI ## RESPONDENTS: - 1 STATE OF KERALA & OTHERS REP.BY CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001 2 THE CHAIRMAN TALUK LAND BOARD, MANNARKKAD & DEPUTY COLLECTOR (LR), PALAKKAD-678 582 - 3 THE TAHSILDAR MANNARKKAD, PALAKKAD-678 582 ## BY ADV. SRI. RIYAL DEVASSY, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 28435 OF 2011 2 ## P.V.KUNHIKRISHNAN, J. -------------------------------------------W.P.(C) No.28435 of 2011 ---------------------------------------------Dated this the 05[th ] day of April, 2024 ## JUDGMENT The above writ petition is filed with the following ## prayers: _“i) call for the records relating to Exhibits P2, P7 and P8 and issue a writ of certiorari or any other appropriate writ, order or direction, quashing the same,_ _(ii) issue a writ of mandamus or any other appropriate writ, order or direction, directing the Taluk Land Board, to drop all further proceedings taken against the petitioner as per Exhibits P2, P7 and P8 confirming Exhibit P1 order dated 20.7.1976 passed in C.C.No.612/73 as the final order,_ _(iii) declare that the action of the Land Board for re-_ WP(C) NO. 28435 OF 2011 3 _opening the case, is contrary to the provisions stipulated under Section 85(9A) of the Kerala Land Reforms Act, and hence liable to be interdicted,_ _(iv) such other appropriate writ, order or direction, which this Honourable Court may deem fit and proper in the facts and circumstances of the case,_ _And_ _(v) Award costs. ” SIC_ 2. It is the case of the petitioner that, he is having plantation of Coffee, Cardamom, etc., in Survey Nos. 300/1, 2 for an extent of 8 Acres and 83 ¾ Cents in Devicolam Taluk in Idukki District. It is also submitted that, he is having Rubber Plantation in Sy.Nos. 3/1A1 and 3/1A2 in Mannarkkad Taluk. According to the petitioner. as per Exhibit P1 order, it was found that there was no excess land to be surrendered by the petitioner. It is submitted that, as 4 WP(C) NO. 28435 OF 2011 per the amendment inserted by Act 16/1989, dated 30.5.1989, sub-section 9A was inserted under Section 85, which deals with the power of the Taluk Land Board for reviewing its decision. But, it is submitted that, as per the provision, the Taluk Land Board shall not re-open any case after the expiry of 3 years from the date of the coming into force of the Kerala Land Reforms (Amendment) Act, 1989. According to the petitioner, since the Land Board has passed Exhibit P1 in 1976 and it has become final, the same cannot be reopened. As per the amended provisions, no order could be reviewed after a period of 3 years, is the submission. But, it is submitted that, the 2nd respondent issued Exhibit P2 notice to the petitioner 5 WP(C) NO. 28435 OF 2011 intimating that the case had been re-posted for reconfirmation of the extent and identity of the land under Section 85(9A) of the Act. In Exhibit P2 notice, it was mentioned that the Board had decided the case on 20.7.1982, but, to the knowledge of the petitioner, no such order had been passed on 20.7.1982, is the submission. On receipt of Exhibit P2, the petitioner submitted Exhibit P4 written objection with supporting documents, followed by Exhibits P5 and P6, is the submission. In Exhibit P4 objection, it was specifically contended that the Land Board has no jurisdiction to re-open the case after a period of 3 years. But, in the meanwhile, in pursuance of Exhibit P2, the Tahsildar was deputed to make enquiry, 6 WP(C) NO. 28435 OF 2011 afresh. The Tahsildar had submitted Exhibit P3 Report, in which it is stated that the petitioner possesses Cardamom Estate in Muvattupuzha Taluk and the Plantation of Cardamom as well as Coffee are covered by registration and the petitioner had been replanting these areas from 1974 onwards. After hearing the matter at length on several dates, the case was taken up for orders. But, it is submitted that, the Land Board has not passed any order with regard to Exhibit P2 notice dated 14.5.1992, till the filing of the writ petition. The petitioner was under the bona fide belief that the Land Board would be passing an order, since the matter was finally heard on 12.6.2007 and taken up for orders. But, it is submitted that the 2nd 7 WP(C) NO. 28435 OF 2011 respondent had issued Exhibits P7 and P8, requiring the petitioner to participate in the enquiry for determining the extent and identity of the land to be surrendered. According to the petitioner, the petitioner made arrangements to appear on 20.7.2010, but the matter was not taken up on that day. The case was adjourned on various occasions. According to the petitioner, the contention of the petitioner based on Section 85(8) of the Kerala Land Reforms Act is to be considered before proceeding further. Hence, this writ petition is filed. 3. Heard the learned counsel appearing for the petitioner and the learned Government Pleader. 4. The main contention of the petitioner is 8 WP(C) NO. 28435 OF 2011 that, once the Land Board concluded the matter as per Ext.P1, the same cannot be reopened in the light of Section 85(9) of the Kerala Land Reforms Act. The petitioner also relying the judgment of this Court in _State of Kerala v. Sivasankaran Nair (2001 KHC 731)_ . The learned Government Pleader submitted that, the Land Board will pass appropriate orders, in accordance with law. 5. After hearing both sides, I am of the considered opinion that the Land Board should pass final orders based on Ext.P2, P7 and P8, after considering the contention of the petitioner regarding the question of delay. Therefore, this writ petition is disposed of with WP(C) NO. 28435 OF 2011 9 the following directions: - _i. The 2[nd] respondent is directed to conclude the_ _proceedings initiated based on Ext.P2, P7 and_ _P8, as expeditiously as possible, at any rate,_ _within a period of four months from the date of_ _receipt of a copy of this judgment._ - _ii. While deciding the matter, the 2[nd] respondent will consider the dictum laid down by this_ _Court in State of Kerala v. Sivasankaran_ _Nair (2001 KHC 731)._ Sd/- nvj ## P.V.KUNHIKRISHNAN JUDGE WP(C) NO. 28435 OF 2011 10 ## APPENDIX OF WP(C) 28435/2011 PETITIONER EXHIBITS EXHIBIT P1: PHOTOCOPY OF ORDER DATED 20.07.1976 PASSED BY THE 2ND RESPONDENT IN C.C.NO.612/73, REFERRED TO IN THE WRIT PETITION. EXHIBIT P2: PHOTOCOPY OF THE NOTICE DATED 14.05.1992 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER, IN CEILING CASE NO.612/73 EXHIBIT P3: PHOTOCOPY OF REPORT NO.L.DIS.2857/92/B1, DATED 01.12.1992 SUBMITTED BY THE TAHSILDAR, DEVIKULAM, TO THE 2ND RESPONDENT. EXHIBIT P4: PHOTOCOPY OF OBJECTION DATED 10.12.1992 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT IN C.C.612/73. EXHIBIT P5: PHOTOCOPY OF ADDITIONAL OBJECTION DATED 02.02.2007 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P6: PHOTOCOPY OF DETAILS OF DOCUMENTS SUBMITTED ON BEHALF OF THE PETITIONER, BEFORE THE 2ND RESPONDENT IN CC 612/73 ON 18.12.2007. EXHIBIT P7: PHOTOCOPY OF NOTICE DATED 18.06.2010 IN CC NO.612/73 ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT. EXHIBIT P8: PHOTOCOPY OF DRAFT STATEMENT OF LANDS TO BE SURRENDERED SERVED ON THE PETITIONER ALONG WITH EXHIBIT P7 BY THE 2ND RESPONDENT. RESPONDENTS EXHIBITS : NIL //TRUE COPY// PA TO JUDGE